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SWA (Rent Supplement)

Question At Issue:

Whether the residents of a charitable institution were entitled to receive a rent supplement.

Background:

A claim for a rent supplement under the supplementary welfare allowance scheme had been made on behalf of five residents of a facility run by a charitable institution. That claim was refused by the Health Services Executive (HSE) [1] . On appeal, the HSE Appeals Officer determined that the decision was not in fact applicable in this case and that the appropriate provision, set out in the same Regulations [1], was that referring to a bona fide tenancy situation. He disallowed the appeal in each case on grounds that the appellant was not a bona fide tenant. That decision was then the subject of appeal to the Social Welfare Appeals Office.

[1] By reference to Article 9(f) of SI No. 382 of 1995, which deals with the question of entitlement to a rent supplement and specifies the categories of person to whom the supplement is not payable.

Oral Hearing:

The manager of the facility where the appellants were resident attended on their behalf. (For ease of reference, he is referred to as the appellant.) The Superintendent Community Welfare Officer and the HSE Appeals Officer attended at the request of the Appeals Officer.

The HSE Appeals Officer outlined the background to the decision under appeal. He said that the facility where the appellants were resident was administered by a service provider to the HSE (the charitable institution). The premises itself was owned by a housing association, details of which were furnished. Subsidies were paid in respect of the residents and care staff were in attendance both day and night. A distinction was drawn between this case and another one in the same HSE area where the residents were ready for independent living and no capitation grant was being paid. He submitted that, in contrast, the residents in this case were severely disabled and fully dependent on the assistance provided to them by their care attendants.

The HSE Appeals Officer went on to say that he had concluded that the original decision was not in fact applicable in this case. He had rejected the claim for payment of a rent supplement on grounds that the residents and the housing association were not engaged in a bona fide tenancy situation. In coming to that conclusion, he said that he had taken account of the severe level of disability of the residents concerned, their heavy dependence on the care provided to them and the fact that they did not have rights such as the freedom to entertain guests in their rooms. He had concluded that the residence was run on the lines of an institution and not on the lines of rented accommodation.

The appellant stated that all of the residents were in receipt of disability allowance and that rent of €56 per week was paid from this source, an arrangement which had been in place since the facility opened in 2004. He said that each resident had a lease agreement and a rent book. The accommodation comprised single en suite rooms with a communal dining area and a communal sitting room where residents could receive guests by prior appointment. The premises had been purpose built under the capital assistance scheme. He contended that all of the residents were close to independent living if they had 24 hour care. He indicated that the charitable institution in question would shortly be incorporated as a limited company and as the umbrella organisation for the housing association involved. He submitted that the Department of the Environment had funded the building of the premises and said that the rent payments were used for general maintenance and improvement of the infrastructure.

During the hearing, a question arose as to how the residents were in receipt of disability allowance which is not payable to persons resident in an institution where maintenance is paid for by the HSE when, at the same time, the HSE took the view that their situation constituted institutional care, with their maintenance being paid for ultimately by the HSE by means of subsidies to the charitable institution.

Consideration of the Appeals Officer:

The Appeals Officer noted that the HSE Appeals Officer had conceded that bona fide tenancy was the question at issue in this case. While this altered the stance taken initially by the HSE, she was satisfied that the appellant was well aware of this prior to the oral hearing and that he had had ample opportunity to prepare his case on the question now at issue.

In support of his contention, the appellant had argued that the residents paid rent and had rent books and lease agreements. Although these documents were not submitted, the Appeals Officer did not question their existence but concluded that such documents did not, of themselves, determine that the situation they purported to represent was bona fide. She considered that the extent to which the residents had either the capacity or liberty to realise or implement the rights, and indeed the obligations, that they should have as parties to the lease agreement was questionable. She noted that subsidies paid by the HSE in respect of the residents included the ‘rent’ element of the costs involved. She took the view, however, that the decision to establish a distinct organisation to manage part of the functions of the facility was an administrative one and that the relevant finance should also be apportioned.

The Appeals Officer examined the question of the payment of disability allowance to the residents. She noted that, in recent years, entitlement while in institutional care had become a grey area, with the application of complicated concessions as to the retention of allowances, as well as the development of new forms of residential care. She considered that these developments were not of assistance in the current appeal given that each individual case, even within the same residence, would be different. In any event, she made it clear that she did not wish to cause disturbance to any payments being made. She regarded the role of the housing association to be unclear, beyond its original establishment for the purposes of constructing the facility in question. She concluded that the residents in this case were people with severe disabilities, who needed 24 hour care. She noted that this was provided to them in comfortable, dignified, private, en suite rooms rather than in an open ward, but concluded that it, nonetheless, constituted residential care as opposed to a commercial tenancy. She concluded that the rent and lease documentation was contrived in these circumstances and that there was no bona fide tenancy.

Outcome:

Appeal disallowed.

End of Document